Ashcroft's Offensive

by Jeffrey Frank

Z magazine, December 2003

For the past few months, Attorney General John Ashcroft has been on a 19-city tour to convince the public that the USA Patriot Act (USAPA) is the essential tool in the war on terrorism and poses no threat to civil liberties.

Ashcroft's offensive on the USAPA comes, in part, as a response to grassroots efforts by dozens of community groups, bar associations, and others to educate the U.S. public on the dangers posed by the USAPA. These grassroots efforts have resulted in over 160 communities and 3 states adopting resolutions condemning, in whole or part, the USAPA. Additionally, the Bush administration has been receiving increased resistance in Congress to its proposal to eliminate the December 31, 2005 sunset provision to a number of USAPA sections, as well as outright legislation to repeal some USAPA provisions, such as the delayed notification "sneak and peak" searches.

Finally, the early release of a draft of the Domestic Security Enhancement Act of 2003 (known as Patriot Act II) raised enough rancor in the public and Congress to scuttle chances for enactment in whole, although individual provisions have been introduced and passed by Congress.

The USAPA, which is an acronym for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, was enacted on October 24, 2001, a little over a month after the tragedy of September 11 and a couple of weeks after the initiation of the bombing campaign against Afghanistan.

Congress approved it overwhelmingly with virtually no debate. It was approved at the height of the anthrax scare when members of Congress were shut out of their offices and couldn't study the legislation, even if they wanted to be critical in a time of hysteria. The sheer bulk of the act, at 342 pages, makes it clear that this was not drafted in a few weeks after September 11. The USAPA is a compilation of the wish lists of the FBI, CIA, the Justice Department, and other executive departments, such as the INS. It includes provisions previously rejected by Congress as too far reaching when the 1996 anti-terrorism legislation was enacted.

In attempting to counter the reality of the USAPA, the Justice Department (DOJ) has distorted or only told half the story.

DOJ Myth No. 1

The Justice Department claims the USAPA has been effective in combating terrorism. In an August 25 speech in Boise, Idaho, Ashcroft made numerous victory claims, including bringing criminal charges in terror investigations against 255 individuals and deporting 515 individuals with links to the September 11 investigation.

REALITY: The vast majority of the 255 arrests were based on pre-USAPA criminal charges, such as credit card fraud and lying to an FBI agent. The majority of the people deported never had ties to terrorism as the FBI had cleared them

of any terrorism connection prior to deportation. Since the Justice Department refuses to tell the public, or for that matter Congress, how many USAPA warrants, searches, and wire taps, etc. have been initiated, we are unable to determine how the USAPA has been used and the results of such usage.

Furthermore, as the FBI admitted after the September 11 attacks, and as the Congressional 9/11 study (at least that part we have been allowed to see) confirmed, the problem was not lack of adequate intelligence, but failure to communicate internally (ignoring some of the most obvious warning signs), the lack of trained translators, and the information overload-a problem very likely to increase with the massive surveillance powers granted the government by the USAPA.

DOJ Myth No. 2

In a September 9, 2003 speech in New York City, Ashcroft claimed, without substantiation, "[t]he Patriot Act gives investigators the ability to fight terror using many of the court-approved tools that have been used successfully for many years in drug, fraud and organized crime cases. "

REALITY: This is more than a little disingenuous. When the FBI seeks to get a warrant to tap the phone of a mobster, they must present sufficient evidence to a judge that there is probable cause that a crime is either being or about to be committed. This probable cause standard is the bedrock of the Fourth Amendment protection against unreasonable searches and seizures.

Under the USAPA, to get a warrant in a terrorism investigation to wiretap a phone, monitor email and Internet usage, search a home or business, or seize documents, all that needs to be shown is that combating terrorism is a significant purpose of the surveillance, a standard far below the Fourth Amendment's probable cause standard.

Furthermore, the warrant under the USAPA is issued by a secret court not subject to the same rules as other courts. The secret courts were established by the Foreign Intelligence Surveillance Act of 1978 (FISA) with the sole purpose of providing tools to ferret out foreign spies. The USAPA substantially amended FISA and now allows the same relaxed surveillance rules to be used against anyone, including United States citizens, in terrorism investigations that, by their very nature, are broad and virtually without limitation.

Under the USAPA, applications for certain warrants submitted to the FISA court can't be turned down as long as the application is properly completed. Not that the FISA court has ever turned down a warrant application anyway. From 1978 until 2002 the FISA court never turned down a warrant request. In 2002, an application for a warrant was rejected when the judge discovered 66 instances of FBI lying in warrant applications. However, the Justice Department appealed the rejection to the never before-used FISA Court of Appeals. In a proceeding where no third party was allowed to submit testimony or briefs, the FISA Court of Appeals overturned the lower FISA court and issued the warrant.

DOJ Myth No. 3

Ashcroft claims the USAPA seizures, " sneak and peak " searches, and related powers will not be used against "ordinary Americans." In a blast against the American Library Association, Ashcroft defended USAPA Section 215, which allows search of library records and book purchases, by claiming this power has always been available through grand jury subpoenas, that the FBI has no interest in or resources to track citizen's library usage, etc. and that the warrants can't be used against U.S. citizens solely based on First Amendment activities.

REALITY: Section 215 has been controversial from the beginning, in large part due to the vigilance of the American Library Association. Warrants for the seizure of records under Section 215 are issued by the same FISA court using the lax surveillance standards discussed above. One of the more insidious aspects of these records seizure warrants is that the person served, who is not likely to be the target of the investigation, is not allowed to inform the target or anyone else- even his or her co-workers or supervisors-of the existence of the warrant or what materials were provided to the government.

Ashcroft's claim that the USAPA has warrant powers already contained in grand jury subpoenas is patently misleading as a grand jury subpoena is based on probable cause of criminal activity, while a USAPA warrant is issued by the secret FISA court based on the lower standard. Further, if federal prosecutors already have this power, what is the purpose of the USAPA?

The Justice Department belies its own claim that it doesn't want to investigate library usage. Its website (www. Iife and liberty. gov) claims that terrorists have frequently used libraries to plan and carry out activities. However, on September 18, 2003, Ashcroft issued a report saying the powers have never been used. So why is it needed in the USAPA?

While the USAPA does restrict use of the warrants solely for First Amendment activities, this only applies to the target of the investigation, not those whose records are sought. Once the government has begun a legitimate investigation, the USAPA allows it to obtain records on an unlimited number of citizens without a showing of any illegal activity.

Additionally, the use of the word "solely" further limits the restriction on investigation of free speech protected activities.

DOJ Myth No. 4

Ashcroft claims that the new crime of domestic terrorism does not apply to peaceful dissent and only applies to "true" terrorism. The DOJ website ridicules groups raising any alarm about use of this provision against peaceful dissent.

REALITY: The USAPA creates a new crime of domestic terrorism, a concept so fluid that almost all acts of political expression and resistance could be included in its definition. Section 802 of the USAPA states, "Domestic terrorism means activities that (A) involve acts dangerous to human life that are a violation of the criminal laws of the U.S. or any state; (B) appear to be intended (i) to influence policy of a government by intimidation or coercion; or (ii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and (B) occur primarily within the territorial jurisdiction of the U.S...."

This definition blurs ideology and terrorism. Any group that uses direct action, civil disobedience, or confrontational political action could fit under this definition. Even the American Bar Association Task Force on Terrorism and the Law has objected to the subjective nature of this provision since the targeted acts only need to "appear to be intended" to influence the government.

The Justice Department has not been able to assure us that the law won't be used against civil disobedience, for example protesting what will surely be Bush's next imperial adventure. The Justice Department website says that this law will not be used for dissent that does not break laws, implying that it can be used if laws are broken even if such unlawfulness is non-violent. Also, there are civil penalties for individuals and organizations convicted of domestic terrorism. U.S. Code Title 18 Section 981(a)(1)(G) provides for forfeiture of "all assets of any individual, entity or organization engaged in planning or perpetuating any act of domestic or international terrorism (as defined in Section 2331)...and all assets, foreign or domestic, affording any person a source of influence or control over any such entity or organization.... "

History shows us that we can have little trust in the FBI and the Justice Department. The FBI's COINTELPRO (Counter Intelligence Program) in the 1960s and 1970s used every dirty trick in the book to disrupt anti-war, feminist and black militant groups. If the FBI was willing to violate civil rights without any law in support, what will it do with the powers granted by the USAPA?

DOJ Myth No. 5

In speeches made in New York (September 9), Boise, Idaho (August 25), Washington, DC (September 15), and elsewhere, Ashcroft claims that the USAPA "breaks down the wall" and allows information sharing and that this information sharing has been crucial in thwarting terrorism.

REALITY: Claims of success due to the breaking down of the wall are dubious. First, it should be noted that the USAPA does not eliminate any "wall." It allows for sharing information among a wide range of federal agencies of "foreign intelligence and counter-intelligence" obtained through grand jury investigations. A court must only be "notified" of this sharing of information; it does not require court approval. Grand jury testimony is given without benefit of legal counsel for the person subpoenaed to testify and without cross- examination. This power can only be defied at the risk of imprisonment for the life of the grand jury. The ability to compel testimony before a grand jury is thus one of the federal government's greatest powers. The USAPA puts that power in the hands of FBI or CIA agents working together with cooperative U.S. attorneys to subpoena people they are interested in, whether or not there is any suspicion of criminal behavior.

Testimony compelled under these circumstances can also be highly unreliable. In the past, grand jury testimony was confidential with few court-approved exceptions and it was supposed to be used solely as the basis for criminal charges that were ultimately tried in a court of law. Under the USAPA, it can be disseminated broadly without ever being tested in an adversarial proceeding.

Any other "wall," primarily between the CIA and FBI, restricting intra-agency information sharing is the result of cultural and bureaucratic differences and jealousies. The USAPA did not break down those barriers .

The wall between intelligence gathering and law enforcement exists for a purpose. Along with the exposure of the COINTELPRO abuses in the late 1970s, the Senate Select Committee on Intelligence (commonly known as the Church Committee after its chair, Sen. Frank Church of Idaho) proposed legislation to stem abuses resulting from intelligence gathering on lawful organizations. The legislation was never adopted, but the FBI did adopt guidelines on domestic intelligence gathering, i.e., spying. Ashcroft has repudiated these guidelines and encouraged the FBI to spy on mosques and Arab and Muslim American organizations.

Elimination of this wall between intelligence gathering and law enforcement presents a greater threat to civil liberties. Prior to the 1996 anti-terrorism act, information gained from surveillance authorized by a court, pursuant to FISA, could be used in a criminal prosecution only against a "foreign agent." Under FISA, as amended by USAPA, warrants for wiretaps, searches, seizure of records, etc. can be obtained if gathering such intelligence is a "significant purpose" of the surveillance. This is far below the standard mandated by the Fourth Amendment to the Constitution, which requires "probable cause" of criminal activity.

DOJ Myth No. 6

Ashcroft claims that many of the complaints, such as the post-September 11 roundup of Arabs and Muslims, the detentions at Guantanamo, the enemy combatant rules, and the registration of Arab and Muslim men, are not part of the USAPA.

REALITY: The detention and deportation of non-citizens suspected of terrorism was initially conducted under Ashcroft's authority, but later incorporated into the USAPA. That is another instance of covering up the extent of the USAPA's assault on civil liberties. Ashcroft's claims that these provisions are not in the USAPA ignores the fact that the federal government has tied all these provisions together as part of the "war on terrorism." But beyond that, the USAPA has become the lightening rod for uneasiness and apprehension over the expanded powers granted the government in the wake of September 11.

It is the atmosphere that has been created not only by the USAPA, but also by the "either you are with us or with the terrorists" attitude, implying that opposing Bush's policies is an unpatriotic act. Bush, Ashcroft, and laws such as the USAPA have created an atmosphere of repression and fear, both among immigrant communities and those who dissent to war without end. Community resolutions opposing the USAPA are one form of resistance to the assault on civil liberties. Other, more active, resistance, such as destruction of library records as soon as materials are returned, is also growing. In any case, Ashcroft's offensive is doomed to failure as the lies, half-truths, and myths promulgated by the DOJ continue to be exposed and more people campaign for the repeal of the USAPA.

Jeffrey Frank is an activist and attorney with the National Lawyers Guild.

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